92 Decision Citation: BVA 92-19813
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-56 928 ) DATE
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THE ISSUE
Entitlement to service connection for a seizure disorder.
REPRESENTATION
Appellant represented by: Veterans Affairs Commission,
Mississippi
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
J. Horrigan, Counsel
INTRODUCTION
The veteran served on active duty from December 1962 to
October 1964.
This matter came before the Board on appeal from an August
1990 rating decision from the Jackson, Mississippi, Regional
Office (RO). The notice of disagreement was received on
August 22, 1990. The statement of the case was issued on
December 3, 1990. The substantive appeal was received on
November 27, 1990. In January 1991, the veteran and his
wife appeared and gave testimony at a hearing before a
hearing officer at the RO. After the veteran's claim was
again denied in a decision of June 4, 1991, an additional
substantive appeal was received on July 17, 1991.
Supplemental statements of the case were issued on July 29,
1991, and November 22, 1991. The case arrived at the Board
of Veterans' Appeals on February 12, 1992, and was docketed
for appeal on February 18, 1992. The veteran has been
represented during his appeal by the Mississippi Veterans
Affairs Commission. The case is before the Board for
appellate consideration at this time.
CONTENTIONS OF APPELLANT ON APPEAL
It is essentially contended that the veteran initially
developed a seizure disorder while on active duty and that
service connection for a seizure disorder is, therefore,
warranted.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C. 7104 (1992),
following review and consideration of all the evidence and
material of record in the veteran's claims file, and for the
following reasons and bases, it is the decision of the Board
that the preponderance of the evidence is against the
veteran's claim for service connection for a seizure
disorder.
FINDINGS OF FACT
The veteran's seizure disorder was not present until more
than five years after his separation from active duty and
his current seizures are unrelated to his military service.
CONCLUSION OF LAW
A seizure disorder was not incurred in or aggravated by
service nor may its incurrence during service be presumed.
38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137, 5107(a);
38 C.F.R. 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
We note initially that we have found that the veteran's
claim is "well grounded" within the meaning of 38 U.S.C.
5107(a). That is, we find that he has presented a claim
which is plausible. We are also satisfied that all relevant
facts have been properly developed and that no further
assistance to the veteran is required to comply with the
duty to assist him mandated by 38 U.S.C. 5107(a).
Under the law, service connection for a seizure disorder is
warranted if the evidence demonstrates that this disorder
was either incurred during service or manifested to a
compensable degree within one year following separation from
active duty. 38 U.S.C. 1101, 1110, 1112, 1113, 1131, 1137;
38 C.F.R. 3.307, 3.309.
The veteran, his wife, and various friends and associates
have reported that he developed a seizure disorder during
service and also experienced seizures during the years
immediately following his discharge. However, a review of
the veteran's service medical records fails to reveal any
complaints or findings indicative of a seizure disorder and
no such symptomatology was reported on his examination in
September 1964 prior to separation from active service. In
addition, no reference to any seizure disorder was made on
the veteran's initial application for compensation benefits
which he submitted in October 1964 immediately after his
discharge from service. It is logical to assume that had he
experienced seizures in service, he would have claimed them
at that time. Furthermore, there was no history of seizure
symptomatology reported on the veteran's initial Department
of Veterans Affairs physical examination conducted in
December 1964. The first clinical evidence of any seizure
disorder dates from March 1970, more than five years after
discharge from service. While a history of a transient
right hemiparesis during service was related during the 1970
treatment, this episode was described as "questionable,"
with a limited evaluation thought to be within normal
limits. Moreover, during the 1970 treatment, the veteran
denied experiencing any post service seizures until early
1970. Contemporaneous medical records are considered far
more persuasive than statements made many years following
treatment and after a claim for compensation benefits has
been filed. Since the clinical record does not support the
veteran's history of seizures during service and shortly
after discharge, and since there is no clinical evidence of
any seizure disorder for more than five years following
active service, service connection for seizures must be
denied.
ORDER
Service connection for a seizure disorder is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
ANTHONY FAVA CHARLES E. EDWARDS
H.H. CLARK
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.